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Common Problems With the Chemical Tests and Refusals

Interviewer: Let’s talk about refusals. What are the most common scenarios and common problems that come up that you see repeatedly?

Objections to Where a Blood Test Is Administered

Aaron: A lot of times people will say, I don’t want to do a blood test in this environment, in this police station. They want their blood drawn in a hospital or in their doctor’s office. For example, in Napa, California, they have you in the garage of a police station when they’re doing a blood test. The squad cars are sitting right next to you in the garage with all the exhaust and everything, and yet they’re sticking needles into your arm. Do you want talk about sanitary conditions? So, people will object to the blood test for certain reasons, and if the reason is valid, we need to fight it and try to win the refusal.

Confusion About Whether or Not a Person Is Legally Required to Take a Chemical Test

Sometimes what happens is we have what’s called ‘officer induced confusion’, and that you see if an officer reads someone their Miranda rights and tells them they have the right to a lawyer, and then after that tells them you have a choice of tests, and people are saying, wait a minute, you just told me I have a right to a lawyer, so I want to talk to a lawyer before I take a test. And if the confusion is not explained properly, then it’s considered officer-induced confusion, and it’s an issue that can help us win at DMV.

Other times, it can be that someone was not properly admonished about the consequences of refusing. For DMV to be able to prove that someone refused a chemical test, there’s a form that the officer is supposed to read, and DMV has to be able to show that there was, in the first place, was reasonable cause to pull them over, that the lawful arrest was there, that they were admonished for what happens if they refuse a test, and that they did refuse the test.

One reason why refusals are so hard to win at DMV is because case law in California allows for the officers to consider one refusal as a test. So if someone has read the admonishment about what happens if you refuse, and then the officer asks, will you take this test, a breath test, will you take a blood test, and someone says, no, to both of them, the officer can say, that’s it. The refusal stands even if someone changes his or her mind. Case law says one refusal equals a refusal.

Now, in almost every case, when someone refuses, the officers are trying to explain to them, you really need to understand what is going on here, maybe you didn’t hear me, or they’ll have another officer explain it. And most of the time someone is given at least one, if not more, chances. I’ve seen people given multiple, multiple chances to make it a non-refusal. But after all that, if the person still does refuse, then we have a problem. We have a refusal situation.

Can You Choose the Chemical Test You Would Like to Take?

Interviewer: Can people pick which test they want, or no?

Aaron: Yes, in most cases. Unless the officer suspects that there are drugs involved, then they can require a blood test. But in most cases, people are able to do a breath test or a blood test. Sometimes there is no phlebotomist available and the officer may require that they need to do a breath test.

Or if a machine is not working and they don’t have another machine available, then they tell them they need to do a blood test. However, in those situations, the officers are required to really go the extra mile to help that person and aid them in taking the type of test they want. This may mean going to another station, or going to a hospital to find a phlebotomist. And if they don’t do that, then we have something else to fight about.

Interviewer: What happens if someone does a breath test and they don’t blow over a 0.08, and then the police say, now we want you to do a blood test? Has anyone had that scenario and then they refuse the blood test, do they mark it as refused? Can they do both tests?

Aaron: If someone does a breath test after they’re arrested and the officers give them a choice of tests, and they choose a breath test, if they come out at under a 0.08, the officers are not supposed to say, let’s do a blood test now and see if there are some drugs in your system.

That is something that we’re going to have a very, very good chance to win. The officer needs to make that determination, because you’ve complied, with implied consent, by choosing that breath test if given a choice, and it’s not a refusal if you refuse to do a blood test afterwards.

Are the Chemical Tests Videotaped?

Interviewer: Is the breath or blood test process videotaped?

Aaron: Some counties will videotape it, especially when it’s a refusal situation if the officers think someone is not complying. In Marin County, we get a lot of videos of refusal cases. Some places are set up to do it, most or not.

Interviewer: Do you find that the video helps or hurts your client’s case?

Aaron: A video can help or it can hurt. What it really does is help us evaluate the case. I can take a video and show it to my client and say, this is what they’re saying happened. Here you are being read this admonition here. You are saying you will not take a test. They have it on film. And then the client can go, oh, I see, or, I didn’t remember that.

Sometimes the clients are fairly impaired or just stressed and afraid. It’s a very unnerving situation when you’re sitting there with police officers. Most people have never been arrested before they are charged DUI. The scenario usually takes place late at night, and people are very tired. A lot of people don’t remember a lot about what happens with their interaction with the officers. Others, it just wakes them right up and they remember every single word.

Can You Be Asked to Repeatedly Undergo the Breath Test?

Interviewer: Do the police ever ask the person to blow 10 times or more until they get the result they want? Do you have that happen?

Aaron: What I see most often is officers claiming that people are not blowing hard enough, or they’ll say that they’re putting their tongue in front of the mouth piece or blowing out the sides of their mouth, or sucking in on the mouthpiece. We see that a lot, and usually what happens there is the officer will say, hey, look, here’s the deal. You’re refusing to do this if you’re not going to do this properly. It’s going to be a refusal. Or if you decide you want a blood test, we’ll do a blood test, if you’re not going to cooperate here. But when someone has chosen a test, and if the officer says, okay, you choose a test, you’re not complying with it then they can call it a refusal.